Wednesday, September 14, 2005

Here we go again - Pledge declared unconstitutional

A U.S. District Court judge in California ruled today that the recitation of the Pledge of Allegiance in schools in unconstitutional. MSNBC report here. Michael Newdow, who had a similar case previously dismissed by the Supreme Court for lack of standing, had filed this action on behalf of three California families.

Strangely, according to the news report the judge felt that he was bound by the precedent of the Ninth Circuit Court of Appeals, who had ruled in favor of Newdow in 2002. The Supreme Court ruling in this case was that the case was dismissed because Newdow didn't have standing to sue on behalf of his daughter who he had no custodial rights. I'm not a lawyer, but my understanding of this ruling is that the Supreme Court ruling overturned the Ninth Circuit ruling. As such it has no precedential value and does not bind the District Court in any way. This seems to open up a ready avenue for the Ninth Circuit to possibly overturn this ruling upon appeal. Keep in mind that the appeal will be heard by a random panel of three appeals court judges, which might end up being significantly different in legal perspective than the panel that ruled in favor of Newdow in 2002. Thus there is no guarantee that this case will even reach the Supreme Court, even though the issue may well reach the highest court eventually.

I do think that this ruling is a gift to Republicans and President Bush at a time when there are two vacancies on the Supreme Court. It certainly will be played up by the right in an effort to emphasize that the courts have overstepped their bounds and need to be curtailed. It is not clear how much effect this will have or how it will play out, but it can not help those on the left who want to stop the president's nominees or at least to moderate his second choice.

Update: Professor Eugene Volokh, who obviously knows much more about the law than me, comes to a similar conclusion about the Ninth Circuit precedent here.